[2024] NSWSC 672

Commissioner of the Australian Federal Police v Mohammad Ali Mahmoud Sallam & Ors

See [9]

Catchwords

PROCEDURE – slip rule – application of slip rule to amend name of fourth defendant and vehicle identification number

Legislation cited

Proceeds of Crime Act 2002 (Cth), § 18, 39
Uniform Civil Procedure Rules 2005 (NSW), § 18.2(2)(c), 19.6, 36.17

Judgment

[1]
On 16 December 2022, the plaintiff filed a Summons naming Nagham Ibrahim Yassen as the fourth defendant in the proceedings. On that day, Beech-Jones CJ at CL, as his Honour then was, made orders with respect to the fourth defendant, being restraining orders pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) (orders 21-23) and sworn statement orders pursuant to s 39 of the Act (orders 43-44). Also on that day, his Honour made a restraining order referring to the second defendant pursuant to s 18 of the Act in respect of a vehicle described in Schedule Four of the Summons as “Audi station wagon bearing VIN WAUZZZ4MGD01257” (“Audi”). The Audi is the property of the second defendant Noura Bader.
[2]
On 27 May 2024, the plaintiff filed a notice of motion seeking orders that leave be granted to file an Amended Summons correcting the name of the fourth defendant to “Nagham Ibrahim Yaseen Yaseen” and amending the Audi VIN number to “WAUZZZ4M4GD012571”. The proposed Amended Summons was attached to the notice of motion.
[3]
The plaintiff relies on affidavits of Olivia Kate Scully affirmed on 26 October 2023, Cara Elyse Sullivan affirmed on 23 May 2024 and Cara Elyse Sullivan affirmed on 28 May 2024. Both Ms Scully and Ms Sullivan are solicitors within the Criminal Assets Litigation team (CAL) of the plaintiff.
[4]
The affidavit of Ms Scully discloses that the original Summons and Orders filed before his Honour contained inadvertent errors with respect to the name of the fourth defendant and the Audi VIN number. I accept that those errors were inadvertent.
[5]
The affidavits of Ms Sullivan disclose that many attempts have been made to serve the second defendant with the proposed Amended Summons, correspondence explaining the proposed amendments and notice of today’s motion. Emails and letters have been sent between September 2023 and 28 May 2023, including letters by express post. Online tracking confirms that delivery was effected to the second defendant’s current bail address on various occasions including most recently on 28 May 2024. No response has ever been received from the second defendant.
[6]
There was no appearance today by the second defendant. However, I am satisfied that she has been served with the proposed Amended Summons and has adequate notice of the order sought today. I observe that Ms Bader has at all times been unrepresented in these proceedings and has never attended any of the listings of the matter. The last correspondence received by CAL from the second defendant was on 19 June 2023.
[7]
In the circumstances, I am prepared to make the order sought in the notice of motion so far as it affects Ms Bader.
[8]
Ms Yaseen Yaseen consents to the order being made so far as it affects her, and I will make that order by consent.
[9]
I make the following orders:-
1. (1)
  Pursuant to rule 18.2(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the notice of motion filed on 27 May 2024 be heard and determined immediately.
2. (2)
  Pursuant to rule 19.6 of the UCPR, the Plaintiff is granted leave to file an Amended Summons in the form annexed to the Notice of Motion.
3. (3)
  Pursuant to rule 36.17 of the UCPR, Schedule Four of the orders made on 16 December 2022 be varied to read as follows:
4. (4)
  Pursuant to rule 36.17 of the UCPR, orders 21 to 23 and orders 43 and 44 of the orders made on 16 December 2022, be varied to read as follows:
5. (5)
  I vacate the listing of the Motion on 25 June 2024.